Four pipeline protesters released on bail pending appeal of jail time

Four of the protesters convicted after blocking access to Kinder Morgan’s Trans Mountain pipeline project have been released on bail pending appeals of their jail sentences.

In October, Kira McLean, Brenda Morrice, Deborah Ann Wood and Kathryn Cass each pleaded guilty to one count of criminal contempt of court.

McLean and Morrice were arrested at the Burnaby protest site Aug. 20 while Wood and Cass were taken into custody by RCMP on Aug. 24.

B.C. Supreme Court Justice Kenneth Affleck, who issued the court injunction limiting the protests, sentenced each of the four offenders to 14 days in jail. He took into account a number of factors including that while the protesters believed the pipeline had to be stopped, they were participating in an organized public and mass defiance of the order of the court.

Affleck noted that the Crown had made a public statement of its intention to seek terms of imprisonment for later arrests and guilty pleas.

To date, there have been a total of 231 arrests, according to figures provided by the Crown.

There have been 186 convictions or guilty pleas. The Crown did not proceed against 17 and one was acquitted. The remaining 27 have their trials scheduled for later this early or early next year.

The protesters who were dealt with initially got fines or were ordered to perform community service. But as the arrests mounted, the judge started to impose jail sentences.

The arrests came to an end after a Federal Court of Canada ruling in late August resulted in work on the project being suspended.

In a ruling on the bail decision for the four protesters, B.C. Court of Appeal Justice Barbara Fisher noted that to succeed in obtaining release pending a sentence appeal the appellants needed to have an appeal with sufficient merit that it would cause unnecessary hardship if they were detained.

The appellants also needed to prove that they would eventually surrender into custody when the appeal was heard and that their detention was not necessary in the public interest.

They raised several grounds of appeal including that Justice Affleck overemphasized certain factors such as the extent of the wilful and deliberate defiance of the court order and that the sentence was excessive.

The Crown opposed both an application for leave to appeal the sentences and the release pending the appeal.

Prosecutors argued that the judge made no errors in principle and that the 14-day jail terms were not demonstrably unfit. The Crown said it considered the offences to be serious ones.

Justice Fisher said she agreed that the offences were serious because criminal contempt is a challenge to the rule of law and agreed that the judge was right to emphasize that general deterrence and denunciation were paramount principles.

“However, I am not convinced that these appeals have insufficient merit to meet the test for leave and for release pending appeal.”

Fisher said Affleck was right to be concerned about continued breaches of the court order.

“He was also rightly concerned about those who came before him knowing full well that the Crown would be seeking escalating sentences,” she said. “However, the appellants raise a valid point as to whether that fact was one that should have been considered an aggravating factor that required proof by the Crown beyond a reasonable doubt.”

The appellants were released on an undertaking to return to court Jan. 31 next year or the date set for the appeal, whichever is first. The ruling was posted online Friday and given out orally Nov. 1.

Dan McLaughlin, communications counsel for the B.C. Prosecution Service, said in an email that he would not be commenting on the appeals as the matter remains before the courts.